Machine Gun BAN loophole

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warfighter929

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Me and my lawyer we're going over some BATFE paperwork while trying to obtain my Class 3 FFL and we found something very interresting. We found or became aware of a loophole in the MG ban of 1986. The "loophole" is YOU can build a post-ban machine gun without having the ATF breathing down your neck. As long as you don't sell it to anybody else you'll be fine. One problem is you still require a tax stamp and thats where it gets a little into the grey area. The ATF will acknowledge your firearm but will reject your request for a tax stamp. I do NOT condone doing this
 
Could you post a link up for the pertinent section of the law? I think that if you were to do this you would have to jump through the hoops to become a manufacturer...
Wikipedia said:
Type 7 Title 1 manufacturer of firearms and ammunition, who may also act as dealer; may not manufacture or deal in destructive devices, ammunition for destructive devices, or armor piercing ammunition. Must also register with the Department Of State under the ITAR Current registration costs start at $2,250 per year. Can also manufacture & deal in Title II NFA firearms with class 2 tax stamp.
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And I think that once you closed up shop you wouldn't be allowed to keep any of your "prototypes". Really it seems like it would be a lot cheaper to just buy one instead of paying $2,250 a year for life.
 
I don't know if anyone here is familiar with IraqVeteran8888 or the Moss Pawn Shop in Georgia, but he just made a video today about this. According to the video, a personally built machine gun is not made illegal by any laws. The ATF is just refusing to accept the $200 check for the registration of whatever machine gun you make.

I have no idea what I'm talking about, and I haven't researched it at all, so I'd like some imput...

http://www.youtube.com/watch?v=3kt0U2cO9e0&feature=g-u-u&context=G2646e1dFUAAAAAAAAAA/
The machine gun rant starts at about 15:18. He mentions this specific issue at 19:51
 
They are also technically 'samples' so that those that law enforcement and the military can test and evaluate and potentially purchase such firearms.

There is something referred to as a 'demo letter'. This is generally from law enforcement or the military expressing interest in such a firearm.
This allows the person with the SOT to acquire the firearm that the law enforcement agency has shown an interest in.
Clearly the intent is to enable law enforcement and the military to still browse and shop for and to purchase select-fire weapons.
Something they cannot do if there is no such market.
The intent is not to allow civilians a way to have personal firearms.

The firearms are also dependent on the SOT and proper FFL license remaining current. As soon as the person ceases to be an FFL paying all appropriate taxes they can no longer own those guns. It is more like the business actually owns the firearms, not the individual.
There is also limited people to sell them to, since they need to go to someone else with the proper licenses and a demonstration letter. So often times they are destroyed in compliance with the law when no buyer purchases them.





Since the purpose is clearly to allow one to make such firearms available for law enforcement to trial or purchase, if the ATF believed such a system was being abused merely for personal ownership on a wide scale, they could implement new policies to curtail the problem.
Much like they found a way to drastically reduce kitchen table FFLs in the 1990s when there was a lot more than they liked. The number of active FFLs was cut more than in half.
 
Not exactly sure what the new enlightenment (or confusion) here is.

The "loophole" is YOU can build a post-ban machine gun without having the ATF breathing down your neck.
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Well if by "without the ATF breathing down your neck," you mean that you might get away with it if no one ever knows or tells on you, and you don't take it out and shoot it -- perhaps. But that would be against the law.

As long as you don't sell it to anybody else you'll be fine. One problem is you still require a tax stamp and thats where it gets a little into the grey area.
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All Title II firearms must be entered into the registry before "making." The BATFE will no longer accept machine gun entries into the registry. They will not approve your Form 1 to make and register one. Therefore, if you proceed, you will be in possession of a piece of contraband the penalty for which is 10 years in jail and $250,000 in fines. That's not a "little grey area."

The ATF will acknowledge your firearm but will reject your request for a tax stamp.
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In 1986, the Hughes Amendment to the FOPA closed the machine gun registry. There is no law that says it is illegal to build one. But that doesn't matter. No, they didn't make it expressly illegal to make. They said it may not be registered. As it MUST be registered, it is de facto illegal to make one.

So, since YOU may not possess one that isn't registered, YOU can't lawfully make one, even for your own uses. That's not a loophole. They will "acknowledge" your firearm -- as an illegal piece of contraband that will destroy your life.

(If you are an SOT2 Manufacturer, you can make all the post-sample machine guns you care to. You just have to know who you can sell them to. They aren't made on Form 1s.)
 
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I would very, very much like to know how the OP's attorney would get around 26 U.S.C. § 5861(d).

To make it easier on him, the link to that law is at http://www.law.cornell.edu/uscode/text/26/5861 and the relevant section reads:
It shall be unlawful for any person—
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;
 
As nice as the loophole sounds, I still think the ATF wouldn't care and just prosecute you anyway.
 
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warfighter929 Me and my lawyer we're going over some BATFE paperwork while trying to obtain my Class 3 FFL and we found something very interresting. We found or became aware of a loophole in the MG ban of 1986. The "loophole" is YOU can build a post-ban machine gun without having the ATF breathing down your neck. As long as you don't sell it to anybody else you'll be fine. One problem is you still require a tax stamp and thats where it gets a little into the grey area. The ATF will acknowledge your firearm but will reject your request for a tax stamp. I do NOT condone doing this
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1. Don't do this.
2. Don't encourage others to do this.
3. Find a different "lawyer".
 
Yes if it is not registered it is in fact illegal due to multiple acts of Congress that the ATF is enforcing.
The NFA of 1934. The GCA of 1968 that revised and expanded the scope of the NFA. The 1986 FOPA and attached Hughes machinegun ban that prohibits new registration of civilian machineguns. To name a few.

They are tasked with enforcing these pieces of legislation passed by the Congressional representation of the people. They do so by creating policies that they feel achieve this.
Currently the policies they have in place they feel are doing a good job at keeping new machineguns out of the hands of civilians outside of the minimum amount necessary to allow law enforcement and the military a market to browse and purchase from. Someone has to make existing and new arms for military and law enforcement, and to create contracts for the lowest bidder they need multiple bidders.
Private business tends to be more efficient, and they can be disposable. They can be made to compete for the benefit of the government, and some allowed to die off by choosing who gets new contracts, who expands, and who does not and has to shrink or file bankruptcy. Much more than can be done with a government agency or part of the military.
So the military and to a lesser extent law enforcement depend on something existing.
Otherwise law enforcement and the military would need to either manufacture their own, or be dependent on importing and purchasing arms from foreign sources as well as foreign sources innovating and coming up with new technology and applications of it.

But that is why there is still a method, and it does require one to jump through the proper hoops. Which can change at any time as the ATF adjusts policies if they feel it has become too easy or the number of people involved are too numerous.
 
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tyeo098 said:
Technically the laws of Congress only apply what they are based on, ie. Interstate Commerce.

If the machinegun never enters Interstate Commerce, the law doesn't apply to it ie Montana's Firearms Freedom law.
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Not according to the Supreme Court of the United States, which gets the job of interpreting the US Constitution.

According to them its mere existence in any fashion has an impact on commerce including interstate commerce, even if only by increasing or decreasing supply and impacting demand because they are reducing their own demand by supplying their own product, which in turn reduces demand on the market, affecting the price of the item in the market, and as such is covered by the Commerce Clause.

They have even gone so far as to say this applies both to things in a legal market, as well as an illegal black market. If it impacts supply and demand in either it is considered covered by the interstate commerce clause, and by existing it has an impact, even if never sold or transported.
 
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I second the suggestion that Warfighter get another attorney. That one does not know the law and is reading only one part of it. The 1986 law closes the NFRTR to private machinegun registration. To legally manufacture a machinegun prior to 1986 you had to have BATFE approval and register it. Since you cannot now register the gun, BATFE cannot approve an application to make it. Period.

Jim
 
Yes, showdowns on 10th Amendment case law are moving slowly, as AZ state laws challenged by fed.gov grind slowly through SCOTUS - we won the first one, SB 1070 is next, then maybe the crack will widen in the dike.
 
dogtown tom said:
Really?
ATF and Federal law believe these state laws are worthless.http://www.atf.gov/press/releases/2009/07/071609-openletter-ffl-montana-legislation.pdf
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The letter applies to FFL's, who are you by definition, under the authority of the federal government. The ATF can do nothing about private citizens in these states, because they do not have the congressional authority to do so. This is because the basis for the law is under the Commerce Clause. Which has no effect on weapons not involved in interstate commerce.
 
tyeo098 Quote:
Originally Posted by dogtown tom
Really?
ATF and Federal law believe these state laws are worthless.http://www.atf.gov/press/releases/20...egislation.pdf

The letter applies to FFL's, who are you by definition, under the authority of the federal government. The ATF can do nothing about private citizens in these states, because they do not have the congressional authority to do so. This is because the basis for the law is under the Commerce Clause. Which has no effect on weapons not involved in interstate commerce.
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Good luck with that.:rolleyes:
 
Someone should send a letter to the BATFE about owning a machine gun as a private citizen in Montana. It would be interesting to read what they send back.
 
They would say its illegal to own, confiscate it, send it to the Mexican drug lords, "find it", scream "IT SAYS MADE IN MONTANA ON IT", and the propose a law outlawing states making their own laws.
 
This argument is akin to the old "I can own X or I can carry concealed without a permit, etc, because the second amendment says so.

I wish that is was the case, but the laws say otherwise at present, and trying to do so WILL land you in jail.
 
The use of "civilian," especially by "our" community, I feel is a grave disservice to our discussions.
If I don my Certified Navy Twill, I am no suddenly imbued with the ability to have MGs added to the National Register (nor of any other NFA item, come to cases).

If we are to communicate this clearly, we need to state that the Registry is closed, flat out closed, and to every body. Excepting certain Agencies, and by form and practice, only approved government agencies.

I cannot but think that if we made sure to cast this as it is, a full and complete ban applying to all citizens, we might have fewer out there just certain that there is a loophole, a work-around, an end run. Or, that being in LE or the military gives a right to own, rather than be issued NFA items, for only so long as their parent agency deems that mete.

Or so I can hope--there are untold legions of the ignorant out there.
 
According to the video, a personally built machine gun is not made illegal by any laws.
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An unregistered machinegun is not legal.
The ATF is just refusing to accept the $200 check for the registration of whatever machine gun you make.
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And it won't be registered because the ATF won't allow any new machineguns into the registry.

No loophole. Someone needs a new (real?) lawyer.
The letter applies to FFL's, who are you by definition, under the authority of the federal government.
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It also applies to manufacturers since they are also required to be federally licensed and therefore also required to be under the authority of the federal government.

The law is just a feelgood measure without someone to legally manufacture the guns and it can't be done because a firearm manufacturer is breaking federal law if they aren't licensed.
 
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